________________________________________________________________ ________________________________________________________________ No. 20-6387 ________________________________________________________________ ________________________________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _______________ DARRIN B. WOODARD, PETITIONER v. UNITED STATES OF AMERICA _______________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________ BRIEF FOR THE UNITED STATES IN OPPOSITION _______________ ELIZABETH B. PRELOGAR Acting Solicitor General Counsel of Record NICHOLAS L. MCQUAID Acting Assistant Attorney General SANGITA K. RAO Attorney Department of Justice Washington, D.C. 20530-0001 [email protected](202) 514-2217
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IN THE SUPREME COURT OF THE UNITED STATES DARRIN B ...
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United States v. Jackson, 446 F.3d 847, 849-850 (8th Cir. 2006);
United States v. Beckett, 208 F.3d 140, 150-151 (3d Cir. 2000);
United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999);
United States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992);
United States v. Crooks, 766 F.2d 7, 11 (1st Cir.) (Breyer, J.),
cert. denied, 474 U.S. 996 (1985).1
Petitioner’s efforts to cast doubt on the positions of the
Eighth and Second Circuits lack merit. He cites (Pet. 7 n.2)
dictum from a single, decades-old case as conflicting authority in
the Eighth Circuit, but that court’s law has long been clear. See
United States v. Davis, 690 F.3d 912, 921 (8th Cir. 2012) (“To
establish a violation of his due process rights, [the defendant]
must prove ‘(1) the delay resulted in actual and substantial
prejudice to the presentation of the defense; and (2) the
government intentionally delayed his indictment either to gain a
1 The Seventh Circuit likewise requires both substantial
prejudice and bad faith, but requires the government to explain the reason for the delay after the defendant demonstrates prejudice. See United States v. McMutuary, 217 F.3d 477, 481-482 (7th Cir.), cert. denied, 531 U.S. 1001 (2000); see also United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994) (clarifying the confusion noted at Pet. 7 n.2), cert. denied, 513 U.S. 1117 (1995).
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tactical advantage or to harass him.’”) (quoting United States v.
That court has also held “that, generally, protection from lost
testimony” -- the very harm alleged here -- “‘falls solely within
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the ambit of the statute of limitations.’” Corona-Verbera, 509
F.3d at 1113 (citation omitted). And petitioner effectively
acknowledges that the difference in approaches would have
practical significance only in a small universe of cases.
Petitioner recognizes (Pet. 21-22) that it “is relatively
uncommon for a defendant to be able to demonstrate actual
prejudice,” and that “[t]he government therefore is rarely
required to come forward with an explanation for its charging
delay” under the approach he favors. Even when such an explanation
is required, the courts on which he relies have indicated that
“[t]he defendant has a heavy burden to prove that a pre-indictment
delay caused actual prejudice,” and that “[i]f mere negligent
conduct by the prosecutors is asserted, then obviously the delay
and/or prejudice suffered by the defendant will have to be greater
than that in cases where recklessness or intentional governmental
conduct is alleged.” United States v. Moran, 759 F.2d 777, 782
(9th Cir. 1985), cert. denied, 474 U.S. 1102 (1986). He cites
only three cases (Pet. 11-13) in which the purportedly conflicting
standards produced different results. One is the previously
discussed district court decision that failed to acknowledge
Second Circuit precedent, and another is Scott v. State, 581 So. 2d
887 (Fla. 1991) (per curiam), which in fact found that “the delay
in this instance provided the prosecution with a tactical
advantage,” id. at 893, and thus might well have come out the same
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way even under the majority’s approach. In short, petitioner fails
to show that the question presented carries sufficient practical
significance to warrant a departure from this Court’s repeated
practice of denying petitions for writs of certiorari on this
issue. See pp. 9-10, supra.
b. Such a departure is particularly unwarranted because the
delay in this case did not violate the Due Process Clause even
under petitioner’s preferred balancing test. The interval between
the offense and the indictment was just over three years, well
within the applicable five-year statute of limitations. See 18
U.S.C. 3282(a); II C.A. App. 153. And although the district court
concluded that “the defendant has shown prejudice with respect to
the pre-indictment delay,” its only basis for doing so was that
had the case been charged earlier, “at least there would have been
a possibility that [Thomas Gillespie] could have been brought to
this courthouse on behalf of the defendant to testify, as the
defendant contends, that the house is really [Thomas’s].” Pet.
App. 7a-8a. That kind of speculative possibility is inadequate to
show the actual, substantial prejudice necessary to trigger an
investigation of the government’s reasons for the delay. See,
e.g., State v. Brown, 656 N.W.2d 355, 363 (Iowa 2003) (explaining
that “the possibility that the missing witnesses or evidence would
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have exonerated” the defendant is “insufficient to establish
actual prejudice”).2
Even assuming that petitioner suffered some prejudice from
the delay, it was minimal. Whatever Thomas Gillespie might have
said, substantial evidence connected petitioner to the North
Elwood residence and the drugs found inside. Petitioner himself
admitted that the Taurus Judge pistol was his; that he kept his
dog at the house; that the southeast bedroom where officers
discovered the Taurus Judge pistol, cocaine, and the utility bill
in his name, was his; that he previously distributed drugs; that
he had several cocaine suppliers; and that Crawford would likely
know that petitioner had cocaine in the house. Pet. App. 2a; II
C.A. App. 59-60, 110-112, 154. In the course of the search in
March 2015, officers found photos of petitioner displayed in the
living room. III C.A. App. 32. And a records check revealed that
the white SUV observed in front of the residence was registered to
“Calvin Harris and/or Darrin Woodard” at that address. I C.A.
App. 35.
To the extent that petitioner might nevertheless have wanted
to challenge his connection to the house at trial, Thomas
2 Because the government was clearly entitled to prevail
under circuit precedent regardless, it had no reason to argue prejudice before the panel below. But that choice does not preclude the government from contending in this Court that it would similarly prevail even under petitioner’s alternative test.
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Gillespie’s absence would not have substantively impeded him from
doing so. Petitioner stated at the evidentiary hearing that he
would have been willing to testify at trial. II C.A. App. 59.
Moffett and Donaho testified that, at the time of the search,
petitioner lived at his mother’s house in Turley and not at the
North Elwood residence. Id. at 33-34, 38-39. Donaho and Monica
Gillespie testified that Thomas Gillespie rented the house and
petitioner put his name on the utility bills only as a favor to
Thomas. Id. at 40-41, 45-47; Pet. App. 9a-10a. Petitioner could
also have potentially presented testimony from his brother
Williams, his cousin Reed, and his friend McBee, all of whom stayed
at the house and would have presumably been aware of whether
petitioner lived there. See II C.A. App. 53, 56-58. Petitioner’s
mother could also have potentially testified that he lived with
her. Petitioner made no showing that any of these individuals was
unavailable.
It is also entirely possible that Thomas Gillespie would have
balked at testifying. And even if he had testified, it is unlikely
that his testimony would have exonerated petitioner. See United
States v. Doerr, 886 F.2d 944, 964 (7th Cir. 1989) (“[W]e shall
only conclude that the death of a witness has prejudiced a
defendant where we are convinced that the witness would have
testified, that his testimony would have withstood cross-
examination, and that the jury would have found him a credible
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witness.”) (brackets, citation, and internal quotation marks
omitted). Although various witnesses testified that Thomas
Gillespie was the leaseholder for the North Elwood house, see,
e.g., II C.A. App. 40-41, and Monica Gillespie testified that
Thomas told her “some” of the items in the house were his, id. at
48-49, neither point -- even if true -- undermines the evidence
that petitioner exercised control over the southeast bedroom and
was responsible for at least some of the drugs in the house. And
Thomas Gillespie’s credibility would have been undercut by the
fact that Monica Gillespie “admit[ted] that he had lied to her and
that he had been a convicted felon.” Pet. App. 10a.
Given the minimal prejudice present here, the reasons for the
delay would not justify a finding of a due process violation even
on petitioner’s preferred approach. Petitioner argued below that
at least part of the delay was attributable to law enforcement
authorities’ desire to secure his cooperation as an informant.
See, e.g., I C.A. Supp. App. 14. That is a permissible basis for
delay. See Lovasco, 431 U.S. at 794 n.15 (identifying “cooperation
of the accused in the apprehension or conviction of others” as a
legitimate prosecutorial consideration) (citation omitted). The
district court concluded that the delay “appears to be nothing
more than inertia or ordinary negligence.” II C.A. App. 167. But
even assuming there was some negligence, courts applying a
balancing approach require that “[i]f mere negligent conduct by
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the prosecutors is asserted, then obviously the delay and/or
prejudice suffered by the defendant will have to be greater than
that in cases where recklessness or intentional governmental
conduct is alleged.” Moran, 759 F.2d at 782. Given the minimal
prejudice here, petitioner cannot satisfy that standard.
3. This case is, moreover, not an ideal vehicle for further
review for the additional reason that petitioner did not argue in
the district court that the government should bear the burden of
proof on the reasons for the delay. Although the government did
not rely on the standard of review when petitioner asked the panel
below to overturn circuit precedent, plain-error review applies to
his unpreserved argument -- meaning that the alleged error must,
among other things, “be plain ‘under current law.’” Johnson v.
United States, 520 U.S. 461, 466-468 (1997) (quoting United States
v. Olano, 507 U.S. 725, 732, 734 (1993)); see Henderson v. United
States, 568 U.S. 266 (2013). Plain-error review applies even
though circuit law would have foreclosed an objection before the
district court. See Johnson, 520 U.S. at 464-465. Petitioner
cannot satisfy the plain-error standard. As previously discussed,
see pp. 11-12, 19-22, supra, the prevailing law requires a
defendant to prove both prejudice and governmental bad faith to
make out a claim that pre-indictment delay violated his due process
rights. Any error thus would not qualify as “plain.”
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CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR Acting Solicitor General
NICHOLAS L. MCQUAID Acting Assistant Attorney General